TODAY‘S FRESH START, INC., Plaintiff and Respondent, v. LOS ANGELES COUNTY OFFICE OF EDUCATION et al., Defendants and Appellants. TODAY‘S FRESH START, INC., Plaintiff and Appellant, v. LOS ANGELES COUNTY OFFICE OF EDUCATION et al., Defendants and Respondents.
No. S195852
Supreme Court of California
July 11, 2013
57 Cal.4th 197
Vibiana M. Andrade, Sung Yon Lee; Greines, Martin, Stein & Richland, Timothy T. Coates and Alison M. Turner for Defendants and Appellants and for Defendants and Respondents.
Best Best and Krieger, Dina Harris and Megan M. Moore for Riverside County Office of Education and San Diego County Office of Education as Amici Curiae on behalf of Defendants and Appellants and Defendants and Respondents.
David Holmquist and Devora Navera Reed for Los Angeles Unified School District as Amicus Curiae on behalf of Defendants and Appellants and Defendants and Respondents.
Dannis Woliver Kelley, Sue Ann Salmon Evans and William B. Tunick for Education Legal Alliance of the California School Boards Association as Amicus Curiae on behalf of Defendants and Appellants and Defendants and Respondents.
Doll Amir & Eley, Michael M. Amir, Mary Tesh Glarum, Lloyd Vu and Hemmy So for Plaintiff and Respondent and for Plaintiff and Appellant.
Deborah J. La Fetra, Damien M. Schiff and Joshua P. Thompson for Pacific Legal Foundation and Options for Youth as Amici Curiae on behalf of Plaintiff and Respondent and Plaintiff and Appellant.
Ricardo J. Soto, Phillipa L. Altmann, Julie Ashby Umansky; McKenna Long & Aldridge and Charles A. Bird for California Charter Schools Association as Amicus Curiae on behalf of Plaintiff and Respondent and Plaintiff and Appellant.
Amy Bisson Holloway, Edmundo R. Aguilar and Todd M. Smith for California State Board of Education, California Department of Education and State Superintendent of Public Instruction Tom Torlakson as Amici Curiae.
WERDEGAR, J.—Two decades ago, California became one of the first states in the country to authorize charter schools—public schools funded with public money but run by private individuals or entities rather than traditional public school districts. The Charter Schools Act of 1992 (
In response to a writ petition by Today‘s Fresh Start, Inc., an entity challenging its school‘s charter revocation, we consider whether the procedures adopted by the Legislature are sufficient under the federal and state due process clauses. (See
FACTUAL AND PROCEDURAL BACKGROUND
A. Charter Schools
The Legislature is charged with providing a public education system for the citizens of the State of California. (
Charter schools are initiated by submitting a petition to the chartering authority, generally the governing board of a public school district but occasionally a county board or the State Board of Education. (
Once approved, charter schools are operated independently, but are subject to public oversight. (California School Bds. Assn. v. State Bd. of Education (2010) 186 Cal.App.4th 1298, 1305 [113 Cal.Rptr.3d 550]; Wilson v. State Bd. of Education (1999) 75 Cal.App.4th 1125, 1137–1142 [89 Cal.Rptr.2d 745]; see
Though independently operated, charter schools fiscally are part of the public school system; they are eligible equally with other public schools for a share of state and local education funding. (Wells v. One2One Learning Foundation, supra, 39 Cal.4th at p. 1186; see
With this background, we turn to the instant charter revocation dispute.
B. Administrative Proceedings
In 2003, Today‘s Fresh Start, Inc. (Today‘s Fresh Start), a nonprofit public benefit corporation, petitioned for and was granted a countywide charter to serve Los Angeles County.3 The Los Angeles County Office of Education (County Office), a regional educational agency, issued the charter through its governing board, the Los Angeles County Board of Education (County Board).4 In 2005, the County Board renewed the charter for a five-year term.
The charter renewal petition stipulated that the County Office would oversee Today‘s Fresh Start, investigating complaints and monitoring the school‘s operations. (See
In June 2007, the County Office advised Today‘s Fresh Start that it planned to investigate concerns raised about the school, including but not limited to four areas: (1) observance of the legal rights of students, parents, and employees; (2) student attendance procedures; (3) professional development; and (4) compliance with State Department of Education testing procedures. Today‘s Fresh Start responded that the planned investigation violated
Contemporaneously, County Superintendent Dr. Darline P. Robles, the head of the County Office, submitted a request for documents regarding the governance of Today‘s Fresh Start to determine whether the school was complying with Corporations Code provisions regulating the operation of nonprofit public benefit corporations. In August 2007, Superintendent Robles provided the school with a staff memorandum analyzing the governance materials sent to the County Office. She wrote: “Staff express serious concerns regarding the governance of the Today‘s Fresh Start Charter School and I share their concerns.” Robles requested additional materials to allow the County Office to determine whether the school‘s board was holding sufficient meetings and complying with open meeting laws, and whether board members were “protecting public funds and not using their positions improperly to the end of personal enrichment.” Superintendent Robles warned that the sufficiency of the school‘s response would dictate whether she recommended to the County Board that it initiate charter revocation proceedings.
At an October 9, 2007, County Board meeting, County Office staff member Dr. Lupe Delgado led a discussion of the staff‘s analysis of the school‘s governance structure and processes and its response to the Corrective Action
At the County Board‘s October 16 meeting, six individuals addressed the board on behalf of Today‘s Fresh Start. Thereafter, Superintendent Robles recommended that the County Board give notice of its intent to revoke the school‘s charter. The County Board voted five to zero, with two members abstaining, to approve Superintendent Robles‘s recommendation to begin the revocation process. A public hearing on Today‘s Fresh Start was scheduled for the November 6 County Board meeting. The County Office informed Today‘s Fresh Start of the board‘s decision and advised the school that it could submit written materials at any time before the hearing to support its oral presentation.
At the November 6, 2007, public hearing, Today‘s Fresh Start provided the County Board with handouts detailing the school‘s grounds for opposing revocation and three binders containing nearly 900 pages of supporting documentation. Six Today‘s Fresh Start students addressed the County Board in support of the school. Five individuals, including the school‘s executive director, Dr. Jeanette Parker, its board chair, Dr. Clark Parker, its legal counsel, Mary Tesh Glarum, and Assemblyman Mervyn Dymally, offered arguments on behalf of Today‘s Fresh Start. County Office staff made no presentation.
In writing on November 19, and again at a County Board meeting on November 20, Today‘s Fresh Start‘s counsel raised concerns that the County Office‘s revocation procedures violated due process. The school contended the County Office‘s staff was both advocating that Today‘s Fresh Start‘s charter be revoked and advising the County Board regarding the revocation, in addition to having a preexisting relationship with the County Board. At the meeting, the school objected to not having an opportunity to respond to a County Office staff presentation listed on the agenda. Drs. Clark and Jeanette Parker again made appeals on behalf of their school. The staff presentation the school objected to followed: County Office staff member Dr. Lupe Delgado gave a brief chronology of the events surrounding the charter revocation process and asked for any specific items or questions the County Board would like to see addressed in the final staff report on Today‘s Fresh Start.
At a County Board meeting on December 4, 2007, Dr. Jeanette Parker again spoke on behalf of Today‘s Fresh Start. Dr. Delgado then presented the County Office‘s final report, which determined that Today‘s Fresh Start had not corrected its noncompliance with testing procedures, had not explained
At the following week‘s December 11 County Board meeting, six speakers addressed the County Board on the school‘s behalf. Dr. Jeanette Parker defended its testing procedures. Today‘s Fresh Start‘s fiscal coordinator assured the County Board that the school had promptly complied with reporting responsibilities. Assemblyman Dymally asked the County Board to give the school one more year. Dr. Clark Parker argued that the revocation process was flawed. Two speakers emphasized Today‘s Fresh Start‘s performance in comparison to other public schools.
After further debate, the County Board voted four to three to revoke Today‘s Fresh Start‘s charter. The County Board adopted factual findings regarding improprieties in student testing procedures, violations of statutory and charter provisions regulating corporate governance, and the failure to correct numerous shortcomings identified in the Corrective Action Plan, all in violation of
Today‘s Fresh Start appealed its charter revocation to the State Board of Education (State Board) on grounds, inter alia, that the revocation proceedings violated due process and the revocation was not based on substantial evidence. (See
C. Judicial Proceedings
Today‘s Fresh Start challenged its charter revocation by filing a petition for writ of administrative mandamus. (See
The trial court granted the motion on the last two grounds and issued a writ setting aside the revocation and remanding to the County Board for further proceedings. After noting that Today‘s Fresh Start‘s liberty and property interests in its charter were undisputed, the court concluded the revocation procedure violated
The Court of Appeal reversed, unanimously rejecting both trial court grounds for granting relief. First, the County Office was not required to formally present its evidence so long as it otherwise disclosed the basis for seeking revocation. Statutorily, nothing in the plain text of
We granted review to resolve important questions of first impression concerning the constitutionality of
I. Due Process Principles
Both the federal and state Constitutions compel the government to afford persons due process before depriving them of any property interest. (
“The essence of due process is the requirement that ‘a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.‘” (Mathews v. Eldridge (1976) 424 U.S. 319, 348 [47 L.Ed.2d 18, 96 S.Ct. 893]; see Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 546 [84 L.Ed.2d 494, 105 S.Ct. 1487].) The opportunity to be heard must be afforded “at a meaningful time and in a meaningful manner.” (Armstrong v. Manzo, supra, 380 U.S. at p. 552; accord, People v. Allen (2008) 44 Cal.4th 843, 869 [80 Cal.Rptr.3d 183, 187 P.3d 1018].) To ensure that the opportunity is meaningful, the United States Supreme Court and this court have identified some aspects of due process as irreducible minimums. For example, whenever “due process requires a hearing, the adjudicator must be impartial.” (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1025 [119 Cal.Rptr.2d 341, 45 P.3d 280]; see Caperton v. A. T. Massey Coal Co. (2009) 556 U.S. 868, 876 [173 L.Ed.2d 1208, 129 S.Ct. 2252]; Withrow v. Larkin (1975) 421 U.S. 35, 47 [43 L.Ed.2d 712, 95 S.Ct. 1456].)
Beyond these broad outlines, however, the precise dictates of due process are flexible and vary according to context. (Mathews v. Eldridge, supra, 424 U.S. at p. 334 [” ’ “[d]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances’ “]; Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371, 391 & fn. 16 [84 Cal.Rptr.2d 466, 975 P.2d 663].) “The function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions. Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need
With a minor modification, we have adopted the Mathews balancing test as the default framework for analyzing challenges to the sufficiency of proceedings under our own due process clause. The first three factors—the private interest affected, the risk of erroneous deprivation, and the government‘s interest—are the same. (See, e.g., California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 347 [84 Cal.Rptr.2d 425, 975 P.2d 622]; In re Sade C. (1996) 13 Cal.4th 952, 986–987 [55 Cal.Rptr.2d 771, 920 P.2d 716].) In addition, we may also consider a fourth factor, ” ‘the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official.’ ” (People v. Allen, supra, 44 Cal.4th at pp. 862–863; accord, Oberholzer v. Commission on Judicial Performance, supra, 20 Cal.4th at pp. 390–391.)
As the case in which we announced the additional state factor makes clear, however, dignitary interests play a role only when the rights of natural persons are at stake: “The federal approach also undervalues the important due process interest in recognizing the dignity and worth of the individual by treating him as an equal, fully participating and responsible member of society. [Citations.] ‘For government to dispose of a person‘s significant interests without offering him a chance to be heard is to risk treating him as a nonperson, an object, rather than a respected, participating citizen.’ [Citation.] Thus, even in cases in which the decision-making procedure will not alter the outcome of governmental action, due process may nevertheless require that certain procedural protections be granted the individual in order to protect important dignitary values, or, in other words, ‘to ensure that the method of interaction itself is fair in terms of what are perceived as minimum standards of political accountability—of modes of interaction which express a collective judgment that human beings are important in their own right, and that they must be treated with understanding, respect, and even compassion.’ [Citation.]” (People v. Ramirez (1979) 25 Cal.3d 260, 267–268 [158 Cal.Rptr. 316, 599 P.2d 622], italics added.) Accordingly, the fourth factor plays no role
The requirements of due process extend to administrative adjudications. (Withrow v. Larkin, supra, 421 U.S. at p. 46; Morongo Band of Mission Indians v. State Water Resources Control Bd., supra, 45 Cal.4th at p. 737.) Relevant here, the bar against financially interested adjudicators applies with as much force to administrative adjudicators as to judicial officers. (Haas v. County of San Bernardino, supra, 27 Cal.4th at p. 1027.) In many other respects, however, administrative hearings need not be conducted with the same rigor demanded of judicial proceedings: “[D]ue process allows more flexibility in administrative process than judicial process....” (Ibid.; see Gai v. City of Selma (1998) 68 Cal.App.4th 213, 219 [79 Cal.Rptr.2d 910] [“The standard of impartiality required at an administrative hearing is less exacting than that required in a judicial proceeding.“].)
With these principles in mind, we turn to Today‘s Fresh Start‘s due process claims.
II. Property Interest
“The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘property’ or ‘liberty.’ [Citations.] Only after finding the deprivation of a protected interest do we look to see if the State‘s procedures comport with due process.” (American Mfrs. Mut. Ins. Co. v. Sullivan (1999) 526 U.S. 40, 59 [143 L.Ed.2d 130, 119 S.Ct. 977]; see Cleveland Board of Education v. Loudermill, supra, 470 U.S. at p. 538 & fn. 3.) Today‘s Fresh Start acknowledges it has no entitlement to issuance of a charter in the first instance, but asserts that, once a charter has been granted, it has a property interest in continuing operation of its school. (See California Assn. of Private Special Education Schools v. Department of Education (2006) 141 Cal.App.4th 360, 372–376 [45 Cal.Rptr.3d 888].) The County Office, as it has throughout this litigation, concedes the school has a protected property interest for due process purposes. We thus assume the existence of such an interest.
“[O]nce it is determined that the Due Process Clause applies, ‘the question remains what process is due.’ ” (Cleveland Board of Education v. Loudermill, supra, 470 U.S. at p. 541; accord, People v. Allen, supra, 44 Cal.4th at p. 862.) Today‘s Fresh Start challenges the predeprivation procedures it was afforded in three respects: (1) the County Board is financially biased; (2) the County Board‘s reliance on input from the County Office violates separation of function principles; and (3) the school was afforded inadequate notice of the case against it.
“When, as here, an administrative agency conducts adjudicative proceedings, the constitutional guarantee of due process of law requires a fair tribunal. [Citation.] A fair tribunal is one in which the judge or other decision maker is free of bias for or against a party.” (Morongo Band of Mission Indians v. State Water Resources Control Bd., supra, 45 Cal.4th at p. 737.) “Of all the types of bias that can affect adjudication, pecuniary interest has long received the most unequivocal condemnation and the least forgiving scrutiny.” (Haas v. County of San Bernardino, supra, 27 Cal.4th at p. 1025.) The state and federal Constitutions forbid the deprivation of property by a judge with a ” ‘direct, personal, substantial, pecuniary interest in reaching a conclusion against’ ” a party. (Haas, at p. 1025, quoting Tumey v. Ohio (1927) 273 U.S. 510, 523 [71 L.Ed. 749, 47 S.Ct. 437, 5 OhioLawAbs. 159, 5 OhioLawAbs. 185, 25 Ohio L.Rep. 236].)
Today‘s Fresh Start contends the members of the County Board have such a disqualifying pecuniary interest: (1) the County Office, like other county offices of education, is authorized to and does operate public schools; (2) because charter schools like Today‘s Fresh Start necessarily compete with other public schools for students, and the funding that follows them (see
Though Today‘s Fresh Start makes financial bias a centerpiece of its due process argument before us, the school concedes it did not raise the issue below. While that omission would be grounds to consider the issue forfeited, we have discretion to consider on appeal purely legal issues raised in a petition for review or answer (
To begin, we note the cases Today‘s Fresh Start principally relies upon are not strictly analogous because, unlike the circumstances alleged here, they involved adjudicators who stood to receive a benefit to their personal fisc. (See Tumey v. Ohio, supra, 273 U.S. at p. 523 [a judge may not preside over a case in which he or she has a “direct, personal, substantial, pecuniary interest” (italics added)].) In Gibson v. Berryhill (1973) 411 U.S. 564 [36 L.Ed.2d 488, 93 S.Ct. 1689], the United States Supreme Court found a due process violation where a state‘s optometry board was comprised of independent optometrists, who were granted authority to conduct disciplinary hearings of corporate-employed optometrists. License revocation of corporate optometrists would enhance the business opportunities of independent optometrists; the optometry board members thus had a personal financial incentive to impose discipline. (Id. at pp. 578–579.) A line of state cases relied upon by Today‘s Fresh Start similarly recognizes that an administrative board composed of members whose personal businesses could benefit from the board‘s rulings violates due process. (See University Ford Chrysler-Plymouth, Inc. v. New Motor Vehicle Bd. (1986) 179 Cal.App.3d 796 [224 Cal.Rptr. 908]; Nissan Motor Corp. v. New Motor Vehicle Bd. (1984) 153 Cal.App.3d 109 [202 Cal.Rptr. 1]; Chevrolet Motor Division v. New Motor Vehicle Bd. (1983) 146 Cal.App.3d 533 [194 Cal.Rptr. 270]; American Motors Sales Corp. v. New Motor Vehicle Bd. (1977) 69 Cal.App.3d 983 [138 Cal.Rptr. 594].) Each case found wanting the New Motor Vehicle Board, a state board charged with,
The due process violation in Tumey v. Ohio, supra, 273 U.S. 510, arose not only from the “direct pecuniary interest” the mayor-cum-judge had in each case but also from his institutional interest: the mayor‘s “official motive to convict and to graduate the fine to help the financial needs of the village.” (Id. at p. 535.) Subsequently, the United States Supreme Court has confirmed that institutional financial interests alone, even without any corresponding personal benefit, may compromise due process. (Ward v. Village of Monroeville (1972) 409 U.S. 57 [34 L.Ed.2d 267, 93 S.Ct. 80]; see Caperton v. A. T. Massey Coal Co., supra, 556 U.S. at p. 878; Haas v. County of San Bernardino, supra, 27 Cal.4th at p. 1028, fn. 14.) In Ward, the Supreme Court considered whether a village mayor sitting as a judge trying traffic and ordinance violations and imposing fines that contributed a “‘substantial portion‘” of the village‘s budget had a disqualifying financial interest. (Ward, at p. 59.) It concluded that, no less than in cases where fines imposed would directly enhance a judge‘s salary (see Tumey, at pp. 520, 535), this arrangement offered an impermissible “‘possible temptation‘” to partisanship (Ward, at p. 60).
But even such an institutional interest as that evident in Ward has not been demonstrated here. In Ward, the mayor-cum-judge had an impermissible incentive to maximize village revenue—for which he was responsible and from which his own salary was paid—at the expense of parties for whom he bore no responsibility. (Ward v. Village of Monroeville, supra, 409 U.S. at p. 60.) Here, in contrast, charter schools are public schools for academic and
Today‘s Fresh Start hinges its as-applied argument on proof that the County Office operates its own schools and that those schools in fact compete with Today‘s Fresh Start for students and funding. The school is constrained by its failure to develop the argument below; there is no evidence of this in the record. While the County Office concedes it operates a few specialized schools aimed principally at high school students, Today‘s Fresh Start serves only kindergarten through eighth grade. Today‘s Fresh Start thus has not shown any incentive on the part of the County Board to disfavor the charter school in preference for schools operated by the County Office.
To the extent Today‘s Fresh Start‘s argument may be read as a facial challenge to county boards adjudicating whether to revoke countywide charters, this argument fails too. The standard for a facial constitutional challenge to a statute is exacting. It is also the subject of some uncertainty. (Zuckerman v. State Bd. of Chiropractic Examiners (2002) 29 Cal.4th 32, 39 [124 Cal.Rptr.2d 701, 53 P.3d 119]; Kasler v. Lockyer (2000) 23 Cal.4th 472, 502 [97 Cal.Rptr.2d 334, 2 P.3d 581].) However, as in Zuckerman and Kasler, we need not settle the precise formulation of the standard because under any of the versions we have articulated the due process claim here would fail. To resolve a facial challenge, we consider “only the text of the measure itself, not its application to the particular circumstances” of this case. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [40 Cal.Rptr.2d 402, 892 P.2d 1145].) Even under the least onerous phrasings of the test, Today‘s Fresh Start must show that having county boards adjudicate charter revocations will create due process problems in at least “‘the generality‘” (California Teachers Assn. v. State of California, supra, 20 Cal.4th at p. 347) or “vast majority” (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 343 [66 Cal.Rptr.2d 210, 940 P.2d 797]) of cases (see Kasler, at p. 502; Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1126 [90 Cal.Rptr.3d 701, 202 P.3d 1089]).
County boards do not operate public schools (see generally
Thus, nothing in either the statutory scheme or the record reveals a financial incentive for the County Board or its individual members to be predisposed in favor of a school‘s charter revocation. Accordingly, we find no financial bias that would have deprived Today‘s Fresh Start of an impartial adjudicator.10
IV. Separation of Functions
A. Overlapping Functions and Due Process
Absent a financial interest, adjudicators are presumed impartial. (Withrow v. Larkin, supra, 421 U.S. at p. 47; Morongo Band of Mission Indians v. State Water Resources Control Bd., supra, 45 Cal.4th at p. 737.) To show nonfinancial bias sufficient to violate due process, a party must demonstrate actual bias or circumstances “‘in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.‘” (Morongo Band, at p. 737, quoting Withrow, at p. 47.) The test is an objective one. (Caperton v. A. T. Massey Coal Co., supra, 556 U.S. at p. 883; People v. Freeman (2010) 47 Cal.4th 993, 1001 [103 Cal.Rptr.3d 723, 222 P.3d 177].) While the “degree or kind of interest... sufficient to disqualify a judge from sitting ‘cannot be defined with precision‘” (Aetna Life Insurance Co. v. Lavoie, supra, 475 U.S. at p. 822), due process violations generally are confined to “the exceptional case presenting extreme facts” (Freeman, at p. 1005). Today‘s Fresh Start contends this is such an exceptional case because the County Office and its governing board failed to observe minimum constitutionally required separation between adjudicative, investigatory, and accusatory functions.
Asking an individual administrative agency to assume multiple roles in this fashion is neither uncommon nor per se unconstitutional. (Withrow v. Larkin, supra, 421 U.S. at p. 52.) In the search for the optimal allocation of administrative functions, “[n]o single answer has been reached.” (Id. at p. 51.) Recognizing this, neither the United States Supreme Court nor we have treated the state or federal Constitution as a straitjacket limiting legislatures to but one permissible approach. In particular, the due process clause does not mandate importation of the adversary trial model into the administrative context in all or even most cases. (See Mathews v. Eldridge, supra, 424 U.S. at p. 348 [“[D]ifferences in the origin and function of administrative agencies ‘preclude wholesale transplantation of the rules of procedure, trial, and review which have evolved from the history and experience of courts.‘“]; Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 1581 [5 Cal.Rptr.2d 196] [“[T]he pure adversary model is not entitled to constitutionally enshrined exclusivity as the means for resolving disputes in ‘[t]he incredible variety of administrative mechanisms [utilized] in this country....‘“]; 2 Pierce, Administrative Law Treatise (5th ed. 2010) Separation of Functions, § 9.9, p. 883 [“[T]he strict agency-based separation of functions approach we have chosen in the criminal justice context is extremely expensive and inefficient,” and is not automatically the best approach for administrative disputes].)
Instead, a legislature may adopt an administrative procedure in which the same individual or entity is charged both with developing the facts and rendering a final decision, and separate adversarial advocates are dispensed with. Rejecting a separation-of-functions challenge to proceedings in which an administrative law judge was required both to investigate and to decide, the United States Supreme Court explained: “Neither are we persuaded by the advocate-judge-multiple-hat suggestion. It assumes too much and would bring down too many procedures designed, and working well, for a governmental structure of great and growing complexity. The social security hearing examiner, furthermore, does not act as counsel. He acts as an examiner charged with developing the facts.” (Richardson v. Perales (1971) 402 U.S. 389, 410 [28 L.Ed.2d 842, 91 S.Ct. 1420].) Proceedings of this sort “are inquisitorial rather than adversarial.” (Sims v. Apfel (2000) 530 U.S. 103, 111 [147 L.Ed.2d 80, 120 S.Ct. 2080].) The federal Constitution does not prohibit them. (Withrow v. Larkin, supra, 421 U.S. at p. 52 [“‘[t]he case law, both federal and state, generally rejects the idea that the combination [of] judging [and] investigating functions is a denial of due process....‘“]; see Howitt v. Superior Court, supra, 3 Cal.App.4th at p. 1581 [“The mere fact that the decision maker or its staff is a more active participant in the factfinding process—similar to the judge in European civil law systems—will not render an administrative procedure unconstitutional.“].)
Even an agency‘s participation in an accusatory portion of administrative proceedings need not give rise to constitutional concerns. In Withrow v. Larkin, supra, 421 U.S. 35, the United States Supreme Court considered a due process challenge to an administrative board authorized to investigate professional misconduct, issue charges, adjudicate those charges, and impose discipline. The court explained: “It is also very typical for the members of administrative agencies to receive the results of investigations, to approve the filing of charges or formal complaints instituting enforcement proceedings, and then to participate in the ensuing hearings. This mode of procedure... does not violate due process of law.” (Id. at p. 56.) At the extreme, the Supreme Court has countenanced proceedings where a single individual may act as investigator, prosecutor, and decision maker. (See Goss v. Lopez (1975) 419 U.S. 565, 581-584 [42 L.Ed.2d 725, 95 S.Ct. 729].) Thus, the general rule endorsed by both the United States Supreme Court and this court is that “[b]y itself, the combination of investigative, prosecutorial, and adjudicatory functions within a single administrative agency does not create an unacceptable risk of bias and thus does not violate the due process rights of individuals who are subjected to agency prosecutions.” (Morongo Band of Mission Indians v. State Water Resources Control Bd., supra, 45 Cal.4th at p. 737; see Sheldon v. S.E.C. (11th Cir. 1995) 45 F.3d 1515, 1518 [“‘[I]t is uniformly accepted that many agencies properly combine the functions of prosecutor, judge and jury.‘“].)
To prove a due process violation based on overlapping functions thus requires something more than proof that an administrative agency has investigated and accused, and will now adjudicate. “[T]he burden of establishing a disqualifying interest rests on the party making the assertion.” (Schweiker v. McClure (1982) 456 U.S. 188, 196 [72 L.Ed.2d 1, 102 S.Ct. 1665].) That party must lay a “specific foundation” for suspecting prejudice that would render an agency unable to consider fairly the evidence presented at the adjudicative hearing (Withrow v. Larkin, supra, 421 U.S. at p. 55); it must come forward with “specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias” (Morongo Band of Mission Indians v. State Water Resources Control Bd., supra, 45 Cal.4th at p. 741; see Gai v. City of Selma, supra, 68 Cal.App.4th at p. 220 [to prove bias, a party must present “concrete facts“]). Otherwise, the
B. The Evidence of Actual Bias
We consider whether Today‘s Fresh Start has presented “specific evidence” (Morongo Band of Mission Indians v. State Water Resources Control Bd., supra, 45 Cal.4th at p. 741) that this is the “exceptional case” (People v. Freeman, supra, 47 Cal.4th at p. 1005) involving a constitutionally unacceptable risk of actual bias. Today‘s Fresh Start identifies two points of structural overlap between the County Office and its governing board, the County Board. Superintendent Robles recommended revocation based on the County Office‘s investigation; as county superintendent she was also, by statute, the ex officio secretary and executive officer of the County Board. (
In Griggs v. Board of Trustees (1964) 61 Cal.2d 93 [37 Cal.Rptr. 194, 389 P.2d 722], we held that where a school district‘s superintendent recommended a sanction against a party and thereafter took no role in the adjudicator‘s decision whether to impose the recommended sanction, no constitutional difficulties arose. There, a teacher challenged as a violation of due process the administrative proceedings that led to her termination. The school district‘s superintendent filed an accusation; thereafter, the school district‘s board of trustees (of which the superintendent was the chief executive officer) afforded the teacher a hearing and upheld the termination. The board of trustees was permitted to presume the superintendent‘s recommendation was correct—subject to reevaluation in light of the hearing evidence—and was permitted to conduct the hearing itself without relying on an outside hearing officer. (Id. at pp. 97-98.) The superintendent did not participate in the deliberations; that separation of functions was sufficient. (Id. at pp. 98-99.)
So too here, Superintendent Robles had a statutory duty to monitor and, if concerns arose, investigate Today‘s Fresh Start‘s operations. (
The four cases Today‘s Fresh Start principally relies upon to establish that Gale‘s actions violated due process are each inapposite.
In Howitt v. Superior Court, supra, 3 Cal.App.4th 1575, the same county counsel‘s office represented the county against an employee in a grievance proceeding and was prepared to advise the quasi-independent adjudicatory body tasked with deciding the grievance. The Court of Appeal concluded this dual role was permissible, but only if a screening procedure between prosecutors and advisers was instituted to avoid the specter of “a hearing in which [a single attorney] representing a county department raises an objection and then excuses himself from counsel table to consult with the Board members as to whether the objection should be sustained.” (Id. at p. 1582.) Unlike the county counsel‘s office in Howitt, Gale was not tasked with defending her agency‘s past actions before a third party adjudicator she simultaneously advised; rather, she was advising a unitary agency on the fulfillment of its statutory responsibilities in overseeing a regulated entity. Neither the United States Supreme Court nor we have held that due process requires subdivision of that role into separate parts.
Golden Day Schools, Inc. v. State Dept. of Education (2000) 83 Cal.App.4th 695 [99 Cal.Rptr.2d 917] involved a transparent due process violation: the same person who initiated the refusal to renew a government contract sat on the appellate panel that reviewed that administrative action (id. at p. 701) and thus “was in the position of judging the correctness of his own decision” (id. at p. 710). Of course, “‘[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.‘” (Caperton v. A. T. Massey Coal Co., supra, 556 U.S. at p. 876, quoting Madison, The Federalist No. 10 (Cooke ed. 1961) p. 59; see In re Murchison (1955) 349 U.S. 133, 136 [99 L.Ed. 942, 75 S.Ct. 623].) The proceedings here involved no similar overlap; the County Board was deciding in the first instance whether to revoke a charter, not reviewing a decision already reached by one or another of its own board members.
In Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81 [133 Cal.Rptr.2d 234], the same legal counsel represented a city in connection with a business permit denial and then advised the third party hearing officer on administrative appeal from that denial. This violated due process because the attorney was in a position to advise on legal rulings and evidentiary objections in the adversarial appeal of an initial decision he had helped obtain. (Id. at pp. 90-94.) Gale was not involved in the appeal of a decision she had helped obtain; rather, she was counseling the County Board, as she had County Office staff, in connection with the same task: the initial decision whether Today‘s Fresh Start‘s charter should be revoked.
Finally, in Quintero v. City of Santa Ana (2003) 114 Cal.App.4th 810 [7 Cal.Rptr.3d 896], the Court of Appeal followed Howitt v. Superior Court, supra, 3 Cal.App.4th 1575, in concluding that the same public counsel‘s office can both represent one party in a contested hearing and advise the third party adjudicator, so long as sufficient separation is put in place between the advocate and adjudicator. In Quintero, the plaintiff was discharged from city employment and his discharge was upheld on appeal by an independent administrative board. Because counsel for the city in the appeal had an extensive history advising the independent administrative board adjudicating the appeal of the city‘s decision to dismiss its employee, the Court of Appeal found a due process violation. (Quintero, at pp. 815-817.) As with Nightlife Partners, Ltd. v. City of Beverly Hills, supra, 108 Cal.App.4th 81, an attorney‘s role in the conduct of an appeal conflicted with his earlier role. No similar appeal is at issue here.
Next, Today‘s Fresh Start cites remarks by one board member, Angie Papadakis, that allegedly establish the County Board as a whole gave excess deference to the County Office staff and its recommendations. Referring to a County Office staff report and three volumes of supporting documentation concerning Today‘s Fresh Start‘s compliance with its charter and state law, Papadakis indicated she “value[d] the work and the responsibility of the staff that spent all this time looking—compiling three books of what they discovered, what they are responsible for, what their job was” and “I did not pile through those three books, those three—you know, I did not go through those.”
More generally, reliance on agency staff to investigate a matter does not disqualify a board or commission from thereafter ruling impartially. In Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826 [264 Cal.Rptr. 100, 782 P.2d 239], for example, a judge argued that the Commission on Judicial Performance was tainted because its own staff had conducted the initial investigation and recommended initiation of proceedings. We rejected the due process challenge, noting that these facts failed to demonstrate “actual bias” and the argument was “contrary to existing authority.” (Id. at p. 833; see, e.g., Withrow v. Larkin, supra, 421 U.S. at p. 54, fn. 20; Griggs v. Board of Trustees, supra, 61 Cal.2d at pp. 97-98; F. T. C. v. Cinderella Career and Finishing Schools, Inc. (D.C. Cir. 1968) 131 U.S. App.D.C. 331 [404 F.2d 1308, 1315].) Reliance on staff necessarily implies a degree of confidence in, and gratitude for, the work individuals perform in accumulating evidence and developing recommendations. The board member‘s comments demonstrate no more than that.
Finally, Today‘s Fresh Start points to remarks County Office and County Board Counsel Gale made at a November 20, 2007, meeting as proof of the board‘s partiality. In a November 19 letter, Today‘s Fresh Start argued that County Office staff‘s participation in investigating the school and recommending revocation violated due process. It further argued that due process forbade any communication between County Office staff and the County Board concerning the revocation, and asked the board to “advise staff that they may not communicate, directly or indirectly, with the Board regarding the revocation.” At the next day‘s meeting, a board member sought a response from legal counsel. Gale explained that staff were not acting as adversarial advocates seeking to persuade an adjudicator, but as advisers to the entity statutorily charged in the first instance with authorizing and, when necessary, deciding to revoke a school‘s charter and, accordingly, that ex
Today‘s Fresh Start‘s position, that County Office staff‘s participation in investigating and offering a recommendation violated due process, was incorrect, as we have explained. Its position that the staff members were advocates, and thus that the board should be prohibited from communicating with its own staff, was similarly incorrect. (See Morongo Band of Mission Indians v. State Water Resources Control Bd., supra, 45 Cal.4th at pp. 738-739 [“‘[s]eparation of functions must be defined and administered in ways that permit decisionmakers access to needed staff advice except in cases where the adviser has significant adversarial involvement in the case under decision.‘“].) In context, it is apparent Gale was arguing not that the County Board was partial, but that its relationship with its own staff was not that of a neutral adjudicator presiding over an adversarial hearing, and thus the board was not prohibited from ex parte contacts with staff members, who were acting as advisers rather than as distinct party-advocates. In that estimation, she was correct.11
At its heart, Today‘s Fresh Start‘s argument rests on the notion that engaging in an administrative investigation and forming opinions based on the fruits of that investigation yields the sort of extrinsic bias the due process
So too here; the Legislature can charge county superintendents, offices of education, and their governing boards with oversight of charter schools without having to outsource adjudication of charter violations and other alleged misfeasance. Combining these functions in a unitary agency offers the advantage of ensuring familiarity and expertise. (See, e.g., Trade Comm‘n v. Cement Institute, supra, 333 U.S. at p. 702; Blinder, Robinson & Co., Inc. v. S.E.C. (D.C. Cir. 1988) 267 U.S. App.D.C. 96 [837 F.2d 1099, 1107].) That a county office is responsible for investigating potential violations does not thereafter preclude the county office‘s governing board from neutrally evaluating the full range of evidence and argument a given charter school may wish to present at the required public hearing, and when warranted revising any tentative opinions the county office‘s initial investigation may have led the board to form.
Considering the record as a whole, we conclude the evidence Today‘s Fresh Start presents establishes neither actual bias nor an unconstitutional risk of actual bias.
V. Evidentiary Hearing
Finally, Today‘s Fresh Start contends it was denied statutory rights and due process because the evidence upon which the County Board rested its ultimate revocation decision was not formally introduced at the November 6, 2007, public hearing. It is undisputed the County Office‘s report, recommendation, and supporting documents were delivered to Today‘s Fresh Start by
We begin with section 47607 and its text. The statute provides in relevant part: “No later than 30 days after providing the notice of intent to revoke a charter, the chartering authority shall hold a public hearing, in the normal course of business, on the issue of whether evidence exists to revoke the charter.” (
We thus turn to the question whether the state or federal Constitutions themselves required the County Office to formally present evidence at a prerevocation hearing. There is no presumption in favor of such procedures; the “judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances.” (Mathews v. Eldridge, supra, 424 U.S. at p. 348; see Oberholzer v. Commission on Judicial Performance, supra, 20 Cal.4th at p. 392 [“[P]rocedural due process does not require a trial-type hearing in every instance.“].) To the contrary, “[i]n general, ‘something less’ than a full evidentiary hearing is sufficient prior to adverse administrative action.” (Cleveland Board of Education v. Loudermill, supra, 470 U.S. at p. 545.)
Pursuant to Mathews v. Eldridge, supra, 424 U.S. 319, we consider Today‘s Fresh Start‘s argument that the procedures it received were inadequate by evaluating “the fairness and reliability of the existing pretermination procedures, and the probable value, if any, of additional procedural safeguards” in light of the private interest at stake and any countervailing government interests. (Id. at p. 343; accord, California Teachers Assn. v. State of California, supra, 20 Cal.4th at p. 347.) In other words, what would the proposed additional procedures add to the fairness and accuracy of the
It is undisputed Today‘s Fresh Start received copies of the roughly 500 pages of materials reflecting the County Office‘s investigation upon which the County Board relied. The school had notice of the November 6, 2007, public hearing and had the opportunity to present written materials in advance of the hearing, as well as arguments from numerous speakers, including counsel, during the hearing itself. Before the County Board‘s final decision, the school was afforded the chance to address the County Board and argue against revocation on numerous other occasions, including at its October 16, November 20, December 4, and December 11, 2007, board meetings. These proceedings gave Today‘s Fresh Start both notice of the alleged deficiencies in its operations and numerous chances to respond, in writing and orally, with evidence and arguments for why its charter should not be revoked.
Today‘s Fresh Start argues that the County Office should have been required to make its case at the November 6 public hearing as well because otherwise the school could not understand the charges against it and rebut the most material points. But in advance of the hearing, the County Office‘s Corrective Action Plan identified and gave notice to the school of 53 specific problems with the school‘s operations on matters ranging from student safety to the administration of state tests. That notice was sufficient to afford Today‘s Fresh Start the opportunity to prepare and submit at the hearing a written rebuttal addressing every alleged problem, whether material or not. Today‘s Fresh Start was told in detail the ways in which its performance was perceived as wanting; that it sharply disagreed with that assessment does not diminish either the notice it had or its opportunity to respond.
Today‘s Fresh Start‘s argument that the County Office should have been required to clarify which shortcomings were most critical is essentially an argument that staff should have spent more time making the case for revocation, and that affording the school an unopposed stage to argue its side to the County Board was a due process violation. (But see Department of Alcoholic Bev. Control v. Alcoholic Bev. etc. Appeals Bd. (1981) 118 Cal.App.3d 720, 725-726 [173 Cal.Rptr. 582] [rejecting the argument that due process required a unitary agency‘s investigatory branch to present an argument to its adjudicatory branch so that the party facing a license deprivation could “present an argument in response thereto“].) What Today‘s Fresh Start describes as a vice (the failure of anyone to argue against its position at the Nov. 6 public hearing) could equally be described as a virtue, allowing the school to present its case without fear of contradiction.
We conclude any increase in the “fairness and reliability” (Mathews v. Eldridge, supra, 424 U.S. at p. 343) of the proceedings from a formal
Given that the additional benefit to be gained from the requirement Today‘s Fresh Start seeks is at best minimal, it matters not that the school‘s interest in avoiding erroneous revocation may well be substantial or the County Office‘s financial burden of formally presenting evidence anew less than overwhelming.12 Today‘s Fresh Start was given the opportunity to be heard “at a meaningful time and in a meaningful manner” (Armstrong v. Manzo, supra, 380 U.S. at p. 552); “the risk of error inherent in the [prerevocation] procedures chosen by the legislature [was] not so substantial in itself as to require us to depart from the ‘ordinary principle’ that ‘something less than an evidentiary hearing is sufficient prior to adverse administrative action‘” (Mackey v. Montrym (1979) 443 U.S. 1, 17 [61 L.Ed.2d 321, 99 S.Ct. 2612], quoting Dixon v. Love (1977) 431 U.S. 105, 113 [52 L.Ed.2d 172, 97 S.Ct. 1723]).
We are mindful in reaching this conclusion that “[l]egislatures and agencies have significant comparative advantages over courts in identifying and measuring the many costs and benefits of alternative decisionmaking procedures. Thus, while it is imperative that courts retain the power to compel agencies to use decisionmaking procedures that provide a constitutionally adequate level of protection..., judges should be cautious in exercising that power. In the vast bulk of circumstances, the procedures chosen by the legislature or by the agency are likely to be based on application of a Mathews-type cost-benefit test by an institution positioned better than a court to identify and quantify social costs and benefits.” (Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 288 [58 Cal.Rptr.2d 721],
DISPOSITION
For the foregoing reasons, we affirm the Court of Appeal‘s judgment.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Chin, J., Corrigan, J., and Liu, J., concurred.